Hospital petitioners have their day in court and one more coming

Linda SatchwellStaff Writer5/5/2010

A packed courtroom, presided over by a retired judge of Butte Superior Court, the Honorable Thomas Kelly, listened April 27 as petitioners for the Plumas District Hospital Tax Limitation Initiative brought an ex parte application.

The petitioners asked for three things: that the court issue a writ of mandate ordering Plumas District Hospital to amend its Resolution No. 2010-5 to use the ballot language included in the initiative itself, rather than the PDH rewrite; that the court order PDH to hold the election at the soonest possible time, which would be a combined (with Peninsula Fire District) special election Aug. 31; and that the court issue a temporary restraining order to keep the district from selling any more bonds until this issue is settled.

Judge Kelly was brought in from Butte County when local judges Ira Kaufman and Janet Hilde recused themselves from hearing the case.

Initiative proponents explained in their petition that they were bringing an “ex parte” application, which is an expedited judicial process, because they’re almost out of time for the Aug. 31 election date.

Ex parte judicial proceedings are usually reserved for urgent matters when requiring notice would subject one party to irreparable harm. The petitioners argued here that if they waited for the time required to file a normal case where the affected party, the hospital, had time to prepare a response, they would miss the August election date.

Though the hospital has opted for putting the initiative on the ballot in the November general election, the petitioners are asking the judge to force an earlier election.

They state, “PHD has failed to follow the applicable law and has engaged in a pattern of delay to prevent petitioners’ initiative from coming before the voters of the district in a timely manner.”

Colantuono’s “opposition” pointed to the “woefully inadequate notice” (less than 48 hours) that this ex parte petition afforded the hospital to respond.

Further, Colantuono charged the petition requires the judge to decide on issues that weren’t in the original petition, including the Aug. 31 election and the temporary restraining order, detailed above.

He asked for the case to be dismissed or, barring that, for an extended time period so that the respondents have “an opportunity to present evidence in opposition to petitioners’ application.”

In addition, Colantouno’s response asked the court to “deny the application on the merits.” He pointed out that the initiative doesn’t qualify for immediate submission to the voters: It is the hospital district’s decision whether or not to go ahead with the next special election or opt for the next general election.

The respondents also pointed to the fact that the petitioners “cite no case law or statutory” to support any of the three applications for judgment they have before the court. That, Colantuono wrote, is an “unprecedented violation of the separation of powers doctrine.” He argued, basically, that it is within the hospital district’s authority to decide all three matters, and that the legal branch has no right to step in.

The petitioners maintained, however, that several election dates, including a general election in June, have been missed because the hospital has purposely impeded the initiative process (which is detailed in the petitioners’ Application For Ruling On Writ Of Mandate, pp. 4 – 6).

The primary matter in this case is whether or not Plumas District Hospital can alter the ballot language that the petitioners set forth in their initiative. According to the petitioners, “PDH has, without authority, changed the question to be presented to the voters.”

Colantuono countered that the district, not the petitioners, has the authority to draft the ballot question. “Elections Code 10403 provides that the district set forth the exact form of any proposition to be voted upon at an election requested to be consolidated.” The proposition “shall conform to this code governing the wording of propositions submitted to the voters at a statewide election.”

He quoted code section 9051(b): “The ballot title and summary may differ from the legislative, circulating, or other title and summary of the measure ...”

But the opposition noted that this code refers solely to state elections. It reads, “The Attorney General, shall provide and return to the Secretary of State a ballot title and summary and ballot label for each measure submitted to the voters ...”

Colantuono was aware the code refers to state elections, because he calls it a “state requirement.”

He continued, “Petitioners, like all initiative proponents, would like to control the form of ballot question ... (but) proponents of statewide, countywide and municipal initiatives do not have authority to write their ballot questions. No public policy reason exists to extend to proponents of district initiative measures a right that no other imitative proponent in the state enjoys.”

In his “Ex Parte Application For Ruling,” Bret Cook, attorney for the petitioners, pointed out, “PDH is a district of limited powers ... governed by Elections Code 9300.”

That code refers specifically to initiative measures submitted to voters in district elections. (Division 9, Chapter 4, Article 1 of the Elections Code) “Nowhere,” continued Cook, “under 9300 is PDH authorized to alter the initiative language or to provide a ballot label.”

Cook also pointed out the code is specific in reference to both state and county elections in stating who will write the ballot label. In the case of the state, the task falls to the attorney general, and in county elections, it’s the county counsel who determines a “true and impartial ballot title and summary.”

Elections Code 9300 doesn’t designate anyone to write the “ballot title, summary and label.” PDH, he reasoned, “can’t assume to itself powers it does not have.” Further, he pointed out “that the entire initiative, including title, is approximately 51 words long,” and argued, “the entire initiative should be presented on the ballot.”

Judge Kelly heard from hospital attorney Steve Gross, standing in for Colantuono, who argued PDH hadn’t had time to file a proper response given such short notice.

Kelly asked what the hospital intended to file, and Gross told him it planned to obtain declarations from the hospital’s Chief Executive Officer Dick Hathaway and board president Dr. Mark Satterfield.

He added they might seek a declaration from the elections official, Kathy Williams, as well. He asked for 10 days to respond.

Kelly admitted he expected the request for a continuance. He consulted with Interim County Counsel Brian Morris, who was in attendance, to determine the latest possible date for a response that also would allow the petitioners’ request for an August election to come before the Board of Supervisors, a necessary step for a special election.

Kelly determined that May 10 was the latest date possible for the hearing and then set May 5, at close of business, as the deadline for a response from the hospital.

He then gave Cook, the petitioners’ attorney, until May 7 to file a response to the hospital’s response.